dissenting:
Because I believe the trial court erred in finding as a matter of law that Officer Daley was not executing or enforcing the law at the time of the accident, I must respectfully dissent.
Viewing all the evidence in its aspect most favorable to defend- ' ants establishes the following chain of events. Officers Daley and White, two uniformed Chicago police officers, were assigned in their unmarked police car to patrol the area near the International Amphitheatre, the scene of a rock concert. They saw a group of approximately 100 people who were trying to storm the Amphitheater without paying. Arrayed against this bottle-throwing mob were two ushers. Officer Daley believed these ushers to be in physical danger and after radioing for assistance he drove his car toward the group with his siren on. He specifically testified that in doing so his intent was to disperse the crowd, rescue the ushers, and prevent property damage. The officers came under attack. Their car was struck by bottles, bricks, and other objects, including one which struck the car with such force as to cause them to believe they were being fired upon. Officer Daley backed up his vehicle in an attempt to get out of range of these missiles. At this point the plaintiff was run over by the vehicle.
The majority appears to concede that Officer Daley was acting to enforce the law when he drove the police car toward the mob. But because the officers then came under attack and were forced to retreat, the majority holds that as a matter of law this momentary retreat was not part of that law enforcement function. This construction defies logic and does not comport with the directive of our supreme court to give to the phrase “the execution and enforcement of any law” its plain and commonly accepted meaning. (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 33, 282 N.E.2d 144, 147.) The trial court’s action prevented the jury from determining whether they believed the facts of the accident to be in accord with our best-case summary of the' defendants’ evidence as outlined above and then determining whether the officer was acting to enforce the law at the time of the accident. This despite the fact that such a determination is ordinarily one for the fact finder to make after consideration of all the facts and circumstances presented in the case. Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 35, 282 N.E.2d 144, 148-49; Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 977, 331 N.E.2d 243, 248.
I would reverse and remand the cause for a new trial at which defendants would have the opportunity to have the fact finder determine this critical issue.